So, what is “Intellectual Property”? The Oxford Dictionary defines it as: A work or invention that is the result of creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark, etc. Wikipedia defines it as: Creations of the intellect for which a monopoly is assigned to designated owners by law. Some common types of intellectual property rights (IPR) are copyright, patents, and industrial design rights; and the rights that protect trademarks, trade dress, and in some jurisdictions trade secrets: all these cover music, literature, and other artistic works; discoveries and inventions; and words, phrases, symbols, and designs.

In the legal sense, “Intellectual Property” includes those intangible rights protecting the products of human intelligence and creation, such as copyrightable works, patented inventions, trademarks, and trade secrets.

A Trade Name is a particular word or phrase used to identify a business, i.e., the official name under which a company does business. A trade name may be a “doing business as” name, assumed name, or fictitious name for the business if the formal name of the business entity is different. A trade name is the name a company uses to: open bank or other accounts; obtain business credit cards; sign contracts; and pursue or defend a claim in court.

A Trade Mark is a particular “word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. A trademark gives a company or person the legal right to go to court to stop everybody else from using the same “word, phrase, symbol or design, or combination of words, phrases, symbols or designs” to identify the goods produced by the company or person which have been listed in the trademark registration. ”

A Service Mark is a particular “word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the services of one party from those of others. A service mark gives a company or person the legal right to go to court to stop everybody else from using the same “word, phrase, symbol or design, or combination of words, phrases, symbols or designs” to identify the services offered by the company or person which have been listed in the trademark registration.

The term “Trademark” is commonly used to denote both trademarks and service marks.

Not every trade name (or business name) must be trademarked. Trademark protection is wise if the trade name is used in commerce to advertise, promote or identify the source of goods or services the company produces. For example, “Google” is both a trade name (there is a corporation called “Google”) and a trademark (because Google puts its name on its products and services to identify the source). On the other hand, TJ Maxx is a trademark for retail department store services, but is not a trade name. The actual name of the company is TJX Operating Companies, Inc., which is a trade name that consumers would not typically identify with what TJ Maxx does.

However, just having the name registered with the Arizona Corporation Commission as a name of your business does not afford protection against someone using the same name as a trademark. For example, person A started marketing her handbags under the name “Red House” in 2000 without forming a legal entity. Person B could form a legal entity “Red House” and register it with the ACC in 2004 because, according to the ACC, this name is still available. However, person B would not be able to use this name as a trademark to identify the source of handbags because person A already uses this name for this purpose and has a common law trademark right. The reverse could also be true. If person A registered her business with the ACC under the name “Red House” in 2000, there may be an argument made that if person A does not use this name as a trademark, i.e., for the marketing her handbag, then that same name may be available to person B wishing to use it as a trademark to advertise and sell handbags. In practicality, the confusion to the public which would result would make this a difficult result, but not an impossible argument to make.

Confusing? Well, then contact Marian Abram at Udall Law Firm. She can assist with your intellectual property needs.

Arizona voters passed Proposition 206 in November, 2016. The most publicized portion of the then proposed law involved a staged increase to the minimum wage for employees in the state. With its passage and the enactment of A.R.S. 23-360 et.seq, effective January 1, 2017, the minimum wage requirements for all full-time, part time, temporary, and seasonal employees in Arizona increased to $10.00 with annual increases of $0.50 per hour until January 1, 2011 when minimum wage will increase from $12.00 using cost of living increases, if any, based upon the Consumer Price Index. There remain certain exceptions, most notably, the tipped employee exemption.

The lesser known portion of Proposition 206 addressed a mandatory paid sick time (“PST”) requirement imposed on all Arizona employers beginning July 1, 2017. These provisions are codified in & A.R.S 23-370 et.seq. The basic PST requirements are as follows:

Accrual of PST

PST accrual is one Hour of PST for every 30 hours worked by an employee (full –time, part time, temporary, seasonal, commissioned, exempt or non-exempt):

Alternatively, employers may provide each employee with a “lump sum” of PST at the beginning of each year, capped at 24 or 40 Hours, at the employer’s option, depending upon the number of employees

Less than 15 Employees: Employees may accrue and use up to 24 Hours of PST annually

15 or More Employees: Employees may accrue and use up to 40 hours of PST annually

Use of PST

Current employees can use PST as soon as it is accrued, by the hour, or the “smallest time increment” used by the employer to track time

A new employee can be required to complete a 90-day probationary period before the employee is allowed to use any accrued PST

The value of PST is based upon “the rate the employee would have earned if employee had actually worked, e.g., hourly rate for hourly employees and for salaried employees (calculated using a conversion formula) – for tipped employees or commissioned employees, average the total of hourly rate (if any), commissions and overtime (if any) paid of the last 90 days

Employees may take PST to care for themselves or a family member regarding:

mental or physical illness, injury or health condition, or need to seek diagnosis, care, or treatment of a condition; or for their preventative care;

needed treatment or to relocate, obtain legal services or counseling because they are victims of domestic violence, abuse, sexual violence, or stalking; and

specific instances when businesses or schools are closed because of a public health emergency, or when care is required for the employee or a family member who has been exposed to a communicable disease

A “family member” is defined broadly to include spouses, registered domestic partners, children (regardless of age), parents (including stepparents and parents-in-law), grandparents, siblings, or any other individual whose relationship with the employee is equal to a familial relationship

An adverse action against an employee within 90 days of the employee asserting a PST right is presumed to be employer retaliation against the employee which can be overcome only by clear and convincing evidence otherwise

PST Notice

An employee can be required to provide “reasonable” documentation as to the basis for using PST only after PST is taken for three or more consecutive workdays,

Employers may not inquire into the details of the health information, the domestic violence or the special circumstances and must keep such information confidential

PST requests may be made “orally, in writing, by electronic means, or by any other means acceptable to the employer”

For foreseeable use of PST, the employee shall make a good faith effort to provide advanced notice

For unforeseeable circumstances, the employee is required only to provide notice pursuant to a written policy provide by the employer

Employees cannot be required by the employer to search for and find a replacement employee as a condition of using PST

PST Carry Over

Earned and unused PST shall be carried over to the following year, subject to the limitations on usage of either 24 or 40 hours PST per year.

Alternatively, an employer may pay an employee for unused earned PST at the end of a year and provide the employee with an amount of earned PST that meets or exceeds the 24 or 40 hours PST per year that is available for the employee’s immediate use at the beginning of the subsequent year.

Employees are not entitled to be paid for any accrued, unused PST upon leaving employment, whether as the result of a voluntary or involuntary termination

However, an employee reinstated within nine months of discharge is entitled to have all accrued and unused PST reinstated

Some employers have been lulled into believing that they need do nothing if their “existing paid time off (PTO) policies meet or exceed mandatory PST requirements” because the statute indicates that such employees are “not required to provide additional paid sick time”. However, that is not necessarily true. There are additional statutory provisions addressing employer notice and accounting requirements. And, employers may wish to institute a PST policy to comply with the new law and, or design procedures for employees to follow when requesting PST. If you are befuddled by all this and/or want to ensure that you, as an employer, are in compliance with Arizona’s Fair Wages and Healthy Families Act, contact Marian Abram or Mimi Petro at to discuss these details further.

]]>Sept 15, Busy Day For Udall Attorneyshttp://www.udalllaw.com/sept-15-busy-day-for-udall-attorneys/
Thu, 15 Sep 2016 19:22:41 +0000http://newsite.udalllaw.com/?p=10016Mimi Petro, Ron Zack, and Michele Thompson were out in the community keeping businesses & individuals educated and up to date with current laws